Monday, May 13, 2013

Warrantless Blood Draw a "No-No" - U.S. Supreme Court in McNeely.

This one is hot off the presses and worth a read.  Missouri v. McNeely (2013), 133 S.Ct. 155 was issued by the United States Supreme Court just weeks ago on April 17, 2013.  Therein the high court found that a warrant is necessary to for a non-consensual blood draw for alcohol testing.  The Court looked carefully at the typical per se exigent circumstances justification for warrantless blood draws in O.V.I. cases.  The easiest way to look at the case was that it held that there is no such per se exigency just because blood alcohol dissipates naturally.  If you have one of these cases, remember that Ohio allows three hours for the blood draw - which is a whole lot of time to contact a judge and acquire a warrant.

R.C. 4511.191(A)(5)(a) provides "the officer shall advise the person at the time of the arrest that if the person refuses to take a chemical test the officer may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person's whole blood or blood serum or plasma."  The statute limits this warrantless blood draw to those O.V.I. offenses where "if the person if convicted would be required to be sentenced under division (G)(1)(c), (d), or (e) of section 4511.19 of the Revised Code."  Those sections under (G) are repeat offender sentencing provisions with (d) and (e) being sentencing for felony offenders.

That said, the Ohio warrantless forced draw provision is rather standardless and, in my mind, substantively identical to the Missouri statute in McNeely.  If you have one of these, look closely too at the department's standard operating procedures.  For instance, with the Ohio State Highway Patrol Lab, the manual - OSP 103.07 - allows a warrantless blood draw only "when it is not feasible to obtain a warrant, and with the approval of a supervisor."